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Weeks v. Birch

United States District Court, E.D. Missouri, Southeastern Division

January 2, 2020

KIMBERLY BIRCH, et al., Defendants.



         This matter is before the Court on Plaintiff's motion to supplement his second amended complaint pursuant to Rule 15(d). ECF No. 168. For the reasons set forth below, the motion will be granted in part and denied in part.


         Plaintiff is an inmate in the custody of the Missouri Department of Corrections (“DOC”). Defendants are Corizon Health, Inc. and several of its medical professionals (collectively “Corizon”) and a number of DOC corrections officers and officials in their official and personal capacities (collectively “DOC”). Plaintiff filed this action under 42 U.S.C. § 1983 alleging that Defendants denied him adequate medical care for many years, that certain DOC Defendants subjected him to excessive force while transporting him from the hospital after reconstructive spinal surgery in February 2017, and that Defendants' continued to deny adequate care and accommodation after his surgery, all resulting in violations of Plaintiff's Eighth Amendment right against cruel and unusual punishment. More specifically, Count I asserts that certain Corizon Defendants refused to provide treatment for Plaintiff's spinal condition until 2017 despite the diagnoses and recommendations of examining physicians since at least 2008. Count II asserts that certain DOC officers used excessive force when they removed Plaintiff from the hospital the day after spinal surgery over his doctor's objection, placed him in hand and leg restraints, and pushed and pulled him in and out of a prison van, causing further injury, pain, and suffering. Count III asserts that Corizon Defendants failed to provide adequate post-operative treatment when they left him in a holding cell for 24 hours without prescribed medications or medical care and later denied him physical therapy and use of a brace and cane as recommended by his physician. Plaintiff further pleads that Defendants' conduct exacerbated an existing and severe kidney condition.[1]

         The Court appointed counsel for Plaintiff in May 2017. He filed a first amended complaint in September 2017 and a second amended complaint, upon leave of the Court, in April 2018. After further discovery, on July 3, 2019, Plaintiff filed this motion seeking to supplement his complaint in order to incorporate facts that came to light during that discovery. In particular, Plaintiff seeks to add: (1) an additional Corizon Defendant, Nurse Trisha Brewer, who was on duty after Plaintiff's surgery; (2) new medical diagnoses regarding the extent of Plaintiff's injuries, revealed in recent medical examinations; (3) new allegations regarding Defendants' ongoing failure to provide adequate care; (4) Corizon's denials of Plaintiff's grievance appeals and request for informal resolution; (5) the fact that video footage exists depicting DOC officers loading Plaintiff into a van from the hospital after surgery; and (6) a new Count V asserting that Defendants permanently denied Plaintiff the use of his cane after his surgery.


         Standards Under Rule 15(a)-(d) and Rule 16(b)

         Though Plaintiff characterizes his motion as one to supplement under Rule 15(d), some aspects are more appropriately examined as amendments under Rules 15(a) and 16(b). When a party erroneously labels a motion as one to supplement rather than amend, the Court may construe it as if it were properly titled. See United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977).

         Supplemental pleadings are governed by Rule 15(d), which provides that the Court “may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d). A supplemental pleading “is designed to cover matters subsequently occurring but pertaining to the original cause.” Schreier v. Drealan Kvilhaug Hoefker & Co. P.A., 018-CV-02310-DSDKMM, 2019 WL 1923111, at *1 (D. Minn. Apr. 30, 2019) (citing United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977)). Although the purpose of Rule 15(d) is to promote the complete adjudication of an existing dispute that may have evolved since the action was initiated, the Court “is to determine, in light of the particular circumstances, whether a filing should be permitted, and if so, upon what circumstances.” Id. at advisory committee's note to 1963 amendment.

         By contrast, amended pleadings are governed by Rule 15(a), which provides that a party may only amend its pleading with the opposing party's written consent or with leave of the Court. Fed R. Civ. P. 15(a)(2). An amended pleading under Rule 15(a) is “designed to include matters occurring before the filing of the [complaint] but either overlooked or not known at the time.” Schreier at *1. The Court should freely grant leave when justice so requires. Fed.R.Civ.P. 15(a)(2). “Principles allowing the liberal amendment of pleadings also apply to supplemental pleadings.” Riggs v. City of Owensville, 4:10-CV-793 CAS, 2011 WL 1576723, at *2 (E.D. Mo. Apr. 26, 2011) (citing Moore's Federal Practice § 15.30 (3d ed. 2010)). Factors to consider include whether: (1) the motion was filed in bad faith or with dilatory motive, (2) the motion was filed with undue delay, (3) leave to supplement or amend would be unduly prejudicial to the opposing party, and (4) the proposed supplement or amendment would be futile. Riggs, 2011 WL 1576723, at *2 (citing Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)).

         While Rule 15 invites the Court's leniency to grant leave when justice so requires, amendments sought after the deadline set forth in the case management order invoke Rule 16(b) and require the moving party to demonstrate good cause. Memhardt v. Nationstar Mortgage, LLC, 4:17-CV-01411-AGF, 2018 WL 3496484, at *2 (E.D. Mo. July 19, 2018) (citing Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008)). After the deadline has passed, the good cause standard is “not optional.” Sherman, 532 F.3d at 716. “The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006). A court “may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16(b) advisory committee's note to 1983 amendment. A court is less likely to find good cause to amend when the moving party knew of the issue at the time of the original complaint and provides no good reason why it was omitted. Barstad v. Murray County, 420 F.3d 880, 883 (8th Cir. 2005); Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003). Although the court may consider prejudice to the non-moving party in a Rule 16(b) analysis, there is no need to consider prejudice where the moving party has clearly failed to be diligent in its efforts to meet the deadlines set by the CMO. Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001).

         In sum, in evaluating portions of Plaintiff's motion properly characterized as supplemental, and absent any suggestion of bad faith or dilatory motive by Plaintiff, the Court may consider undue delay, prejudice, and futility. In evaluating portions of the motion more accurately construed as amendments, given that the deadline to amend has long passed, the Court examines good cause. After careful consideration and guided by these standards, the Court concludes as follows.

         Proposed Supplemental Pleadings - Rule 15(d)

         Denial ...

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